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The Latest Attempt to Insulate Activist Conservative Judges From Charges of Judicial Activism

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George Will has introduced the latest effort to claim that, by definition, only liberal judges can be enagaged in judicial activism. This latest gloss on the more accurate “judgifying I don’t like” is about as useful as you’d expect.

Perhaps for the 10th anniversary of Bush v. Gore we can get a symposium of conservative pundits and legal scholars to praise the Court for its judicial “engagement.”   After all, if the ratification debates of the 14th Amendment produced any common thread, it must be “using different standards to count ballots is illegal if it might prevent a Republican from winning Florida’s electoral votes and not in any other case.”    More sophisticated conservatives can provide the extensive evidence that the Framers uniformly understood Article II to mean that “only state legislatures can make or enforce election laws, unless it’s an executive or judicial branch official making a ruling favorable to the Republican candidate, with executive branch officials appointed by the candidate’s brother given especially wide discretion.”    That could be almost as convincing as Will’s column!

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